Written by Peter CarterSeptember 23, 2010
The NSW Court of Appeal * recently addressed “obvious risk” under that state’s Civil Liability Act and came to similar conclusions to the Bardon burnout case.
The plaintiff had been cycling along a pathway in Taree and failed to observe that a metal chain strung across the mouth of the pathway leading into a park. On impact, he was catapulted over the handlebars, sustaining an injury.
The chain was similar in colour to the concrete and it was slung low (to provide some after-impact warning to cyclists). The plaintiff had been riding slowly and carefully but did not see it until he was only about 5 m away when it was too late. He had ridden the route previously, but there was no chain across it then.
There were reasonable precautions that the council could have taken including using a bollard or a brightly coloured chain which was more readily visible. The court awarded the plaintiff damages in negligence in the amount of $114,402.00.
The council appealed.
The trial judge and the appeal court confirmed that an analysis of negligence firstly involves general common law principles of duty and breach of duty (step1). Section 5B in the NSW Act (s 9 in Queensland) is engaged as a second step.
The Appeal Court quoted with approval the passage of McColl JA in RTA NSW v Refrigerated Roadways Pty Limited  NSWCA 263 (view decision):-
“Section 5B is not a self-contained statement of the circumstances in which a liability for negligence will arise. Rather, subsection 1 sets out three preconditions that must co-exist before a liability in negligence arises, when the type of negligence alleged is failure to take precautions against a risk of harm arising.
(1) A person does not breach a duty to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
The council also argued that the risk was “obvious” and therefore the plaintiff was taken to have been aware of and accepted at risk under sections 5F, 5G & 5H (in Queensland sections 13, 14 & 15), thereby entitling it to a complete defence.
On this point, the court decided that even though a reasonable person in the position of the plaintiff could not expect that conditions along the path would not change, “a chain which may not be visible to a cyclist taking reasonable care, until a short distance before coming upon it, is not an obvious risk”.
Finally, the court had to decide whether and what extent the plaintiff had contributed to his own injury. The court ruled that there was no contribution on his part and upheld the award of damages.
* Council of the City of Greater Taree v Wells  NSWCA 147 (1 July 2010)